Fundamental to the lawyer's practice is the ability to effectively manage the lawyer/client relationship through its various stages. This point cannot be over-emphasized as failure to effectively manage the lawyer/client relationship can easily lead to client dissatisfaction and a professional negligence claim.
Performing legal services for a client involves a number of different stages. Initially, you, as a lawyer, will have to decide whether it is appropriate for you to accept the new client or case. Assuming that you make the decision to proceed with the relationship, you must turn your mind to how it will begin and how it will be structured.
At some point, the relationship will come to an end because either your work has been completed or the relationship is in some way undermined, requiring early termination. At each stage, careful thought and planning will be required.
What follows is a brief discussion on specific areas of sensitivity which give rise to claims and how to approach each of the key stages in the lawyer/client relationship.
Deciding whether to accept the case
The first step when approached by a potential client is to decide whether to agree to represent the client in the particular matter. Before accepting representation, you should obtain as much information as possible to determine whether you can undertake the work required competently, effectively and responsibly. This step is referred to as "client screening" or "case screening," and, if done thoroughly, can go a long way to avoiding situations that result in malpractice claims.
Appendix 1 - Checklist for Client/Case Screening reviews the points which should be considered before taking on a new client or case.
The screening is done. The answer is no. You will not act. What's next?
Once the lawyer decides to decline a representation, the lawyer must communicate that decision to the prospective client immediately and in writing.
A common source of claims is miscommunication. The client believes that he or she has retained the lawyer to act on his/her behalf but the lawyer did not appreciate this assumption, and consequently did not take steps to protect the client's interests. To avoid confusion, the lawyer should clarify with any prospective client that he/she is not acting on the client's behalf.
Furthermore, the lawyer should maintain sufficient information to avoid subsequent conflicts of interest and breach of confidentiality, depending on the nature and degree of information obtained from the prospective client in the initial consultation.
The letter setting out this information to any prospective client is typically referred to as a "non-engagement letter" and should deal with the following issues:
- State that not representing the prospective client.
- Refrain from commenting on the merits of the case.
- Identify generally the fact that time limits might apply to bar recovery.
- Return any materials provided during the consultation.
Appendix 2 - Checklist for Non-engagement Letter outlines the specific points to be included.
The screening is done. The answer is yes. You will act. What's next?
Beginning the relationship
Once you have decided that you are prepared to represent the client in a particular matter, you are ready to begin building a relationship with that client. Even if you already have a relationship with the client, but are taking on a new case, it is essential that you communicate with him or her to establish a mutual understanding of the nature and scope of the matter to be pursued.Right at the outset you will need to think through the type of legal service you will provide and how you will provide it. Appendix 3 - Checklist for Engagement/Retainer Letter lists points which should be canvassed with the client and then confirmed in writing in an "engagement letter agreement" also known as a "retainer letter agreement."
With the engagement letter agreement in place, the relationship is well-defined on paper. Now comes the implementation stage.
Once the retainer is in place and efforts are underway to handle the matter, the lawyer must continue to work with the client on the developed strategy. As the matter evolves, the client's needs and objectives could change; the strategy then must be reviewed and adjusted to respond to any prevailing developments. The process is a dynamic one involving ongoing investigation, ongoing legal analysis and research, and communication with the client to keep him or her informed about the status of the matter and the need for his/her instructions. It may be that the terms of the initial retainer change. If that is the case, these changes should be documented by a confirming letter to the client.
When your retainer is completed the representation should cease, including termination of the authority and your duty as a lawyer to protect the client's interests.
Although most retainers end when services are completed, representation may also end when a client dies, when you as lawyer die or are disbarred or become disabled, when the client discharges you, or when you withdraw. Various Rules of Professional Conduct will apply to your ability to withdraw.
In addition, a written record of the circumstances of termination must be prepared so as to disengage the lawyer/client relationship. Such a letter is referred to as a "disengagement letter" or a "termination letter."
There are two types of disengagement letters one to document a situation where the matter has been completed, and one to reflect that the retainer has been terminated prior to its expected completion. Appendix 4 - Checklist for Disengagement/Termination Letter outlines the matters to be addressed in such a letter.
Issues to address at termination
At the time of termination of the representation, you must consider the following issues:
- return of client property (including file documents);
- return of client property (including file documents);
- duties with respect to future conflicts of interest; and
- accounts for fees and disbursements.
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